SIMMONS, TIMMY L., PEOPLE v ( 2015 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1115
KA 14-00835
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
TIMMY L. SIMMONS, DEFENDANT-APPELLANT.
PATRICIA M. MCGRATH, LOCKPORT, FOR DEFENDANT-APPELLANT.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Niagara County
(Matthew J. Murphy, III, A.J.), rendered April 23, 2014. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the fourth degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a
jury trial of criminal possession of a weapon in the fourth degree
(Penal Law § 265.01 [4]), defendant contends that the evidence is
legally insufficient to support the conviction because the People
failed to present evidence that he possessed a shotgun on or about the
date charged in the accusatory instrument and failed to present
legally sufficient evidence of possession. Because defendant’s motion
for a trial order of dismissal and his renewed motion after putting in
his own proof were not “ ‘specifically directed’ ” at the first
alleged error, defendant failed to preserve that contention for our
review (People v Gray, 86 NY2d 10, 19). We reject defendant’s
challenge to the sufficiency of the evidence that he possessed the
shotgun. We conclude that, “viewing the facts in [the] light most
favorable to the People, ‘there is a valid line of reasoning and
permissible inferences from which a rational jury could have found the
elements of the crime proved beyond a reasonable doubt’ ” (People v
Danielson, 9 NY3d 342, 349, quoting People v Acosta, 80 NY2d 665,
672).
Defendant further contends that he was deprived of a fair trial
by prosecutorial misconduct on summation. By failing to object to any
of the alleged instances of prosecutorial misconduct, defendant failed
to preserve that contention for our review (see CPL 470.05 [2]; People
v Easley, 124 AD3d 1284, 1285, lv denied 25 NY3d 1200). In any event,
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KA 14-00835
we conclude that defendant’s contention is without merit.
Entered: November 13, 2015 Frances E. Cafarell
Clerk of the Court